R. v. Tang, 2015 ONCA 470

Court of Appeal for Ontario

Citation: R. v. Tang, 2015 ONCA 470 Date: 2015-06-25 Docket: C56745

Before: Doherty, Hourigan and Huscroft JJ.A.

Between:

Her Majesty the Queen Respondent

and

Weizhen Tang Appellant

Counsel: Weizhen Tang, appearing in person Michael Lacy, appearing as duty counsel John Pearson, for the respondent

Heard: June 10, 2015

On appeal from: The conviction on a charge of fraud over $5,000 returned by a jury presided over by Justice O’Marra of the Superior Court of Justice, at Toronto on October 30, 2012.

Endorsement

1Mr. Tang was convicted after a jury trial of a multi-million dollar fraud arising out of an investment scheme operated by Mr. Tang. He unsuccessfully brought a “Rowbotham” application at trial. Mr. Tang represented himself at trial, although amicus was appointed by the trial judge to assist Mr. Tang and the court. Amicus cross-examined several of the witnesses and made various submissions.

2On appeal, Mr. Tang sought the appointment of counsel pursuant to s. 684 of the Criminal Code. Counsel was appointed on the sentence appeal, but not on the conviction appeal. Mr. Tang represented himself on the conviction appeal with the assistance of Mr. Lacy as duty counsel. Mr. Lacy went well beyond the normal function of duty counsel. The court appreciates his assistance.

3Mr. Lacy made two arguments on behalf of Mr. Tang. First, he submitted that Mr. Deverteuil should not have been allowed to give expert forensic accounting opinion evidence because he lacked sufficient independence and impartiality. The investigation that led to the criminal charge against Mr. Tang began with an OSC investigation and various orders made by the OSC. Mr. Deverteuil is a forensic accountant in the employ of the OSC and was involved in the OSC’s investigation of the appellant. The appellant has alleged throughout the proceedings that the OSC was biased against him and that the OSC’s improper intervention in his investment business was the cause of the collapse of that business and substantial financial harm to Mr. Tang’s investors and Mr. Tang.

4No objection was taken to Mr. Deverteuil testifying at trial. Amicus did cross-examine him on his involvement in the OSC investigation. The appellant, who cross-examined other witnesses, chose not to cross-examine Mr. Deverteuil.

5A transcript of Mr. Deverteuil’s evidence was made available on appeal. His evidence consists almost entirely of a tracing of funds in and out of various accounts. With the exception of a few answers that may have called for opinions that would require the expertise of a forensic accountant, Mr. Deverteuil’s evidence was not opinion evidence, but rather factual evidence reporting on the movement of funds in and out of various accounts. That evidence was based on various banking and related documents. The appellant challenged the tracing exercise performed by Mr. Deverteuil suggesting that certain bank accounts controlled by Mr. Tang were not taken into account by Mr. Deverteuil in his tracing exercise.

6Mr. Deverteuil’s connection with the OSC and its investigation of Mr. Tang did not automatically disqualify him from giving any and all expert forensic accounting evidence in the criminal proceeding. We do not read Burgess v. Abbott, 2015 SCC 23 as establishing that kind of per se rule. The determination of whether an expert’s prior connection with an investigation should disqualify that person from giving expert opinion evidence can only be made within the full context of the specific facts. The nature of the prior investigation, the role played by the individual expert in that investigation, and the nature of the proposed expert evidence would all be important considerations in the determination of whether the expert’s prior involvement made the case was one of those relatively rare cases in which an expert’s lack of independence or impartiality provided a basis for holding that the expert was not competent to testify. As Burgess indicates, in most cases, suggestions that an expert witness lacks independence or impartiality will go to the weight of the expert’s evidence rather than its admissibility.

7In any event, the nature of Mr. Deverteuil’s evidence removes any potential prejudice to the appellant. Even if Mr. Deverteuil’s involvement in the OSC investigation disqualified him from giving expert opinion evidence, his evidence tracing the funds remained admissible. The few answers given by Mr. Deverteuil that slipped into the area of expert opinion evidence were of little, if any, consequence to the central issues. In the end, Mr. Tang’s guilt turned on whether he had deliberately lied to his investors and obtained their money as a result of those lies. To the extent that Mr. Deverteuil gave any opinion evidence, it did not touch on those questions. This ground of appeal cannot succeed.

8Mr. Lacy’s second argument challenges the pretrial ruling of Nordheimer J. on the “Rowbotham” application. He refused to order a stay of proceedings until the Attorney General provided the funds necessary for Mr. Tang to retain counsel for the trial.

9In dismissing the “Rowbotham” motion, Nordheimer J., at para. 5, identified the three prerequisites to the making of the order:

i. ) the accused person must have been refused Legal Aid; ii. ) the accused person must lack the means to employ counsel; and iii. ) representation for the accused must be essential to a fair trial.

10All three criteria must be met. We need concern ourselves only with the second of the three.

11In determining that the appellant had failed to show that he lacked the means to employ counsel, Nordheimer J. said, at paras. 78-79:

The failure of Mr. Tang to be open and transparent regarding his resources and sources of funds underlies the refusal of Legal Aid Ontario to provide him with a certificate. It is mirrored in the application that is before me. That situation is entirely of Mr. Tang’s own making. He cannot rely on his failure to be upfront regarding such matters to justify the fact that he has been refused legal aid. Consequently, Mr. Tang does not satisfy the first criterion.

Similarly, because of the lack of disclosure coupled with the inconsistencies between Mr. Tang’s claimed income and his current lifestyle, I am not satisfied that Mr. Tang lacks the means to employ counsel. I note in this regard that earlier in these proceedings Mr. Tang employed counsel from time to time for assorted purposes. He paid significant but varying amounts to each of these counsel, all while still laboring under the financial restrictions that he now claims should entitle him to state funded counsel. How it was that he had funds to do so at those different times and why he now says that he cannot retain counsel is yet another matter that is unexplained.

12The factual findings of Nordheimer J. are fully supported on the record before him. In light of those findings, and particularly the finding that the appellant chose not to make full and accurate disclosure of the resources available to him, Nordheimer J. had no option but to dismiss the Rowbotham application. We agree with his disposition.

13Mr. Tang also made submissions to the court. His submissions related to a variety of matters, including:

• his lack of funds to retain counsel and his inability to properly defend himself without counsel;
• the absence of evidence from individuals knowledgeable about the kind of investment business that Mr. Tang ran;
• the absence of financial gain by Mr. Tang;
• the trial court’s refusal to consider Mr. Tang’s reputation as a person of good character; and
• the catastrophic financial results caused to Mr. Tang and the investors by the OSC actions.

14These submissions and others advanced by Mr. Tang repeat much of what he said in his evidence at trial and do not assist in determining whether there is any basis for this court to interfere with either the verdict at trial or the ruling on the Rowbotham application. We reject those arguments.

15Mr. Tang also argued that “there is no evidence there was a crime”. In our view, there was overwhelming evidence of a massive fraud perpetrated by Mr. Tang. The jury heard evidence that was reasonably capable of establishing that Mr. Tang, over a number of years, defrauded hundreds of individual investors by constantly misrepresenting numerous significant facets and features of the investments those people were making or had made through Mr. Tang and his related corporate entities. On the Crown’s evidence, obviously accepted by the jury, this was a straightforward case of fraud by deceit on a massive scale. Clearly, we do not accept Mr. Tang’s submission that “there is no evidence there was a crime”.

16The conviction appeal is dismissed.